K. Subair v. State of Kerala and Kannothumkandy Siraj

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 11TH DAY OF JULY 2017/20TH ASHADHA, 1939** **Crl.Rev.Pet.No. 691 of 2017 ()** **-------------------------------** **CMP 4239/2015 IN S.T.C. NO 786/2015 (OLD NO. S.T.C. NO. 42/2012) OF CHIEF JUDICIAL MAGISTRATE COURT.,THALASSERY DATED 29-04-2017** **---------------------** ## **REVISION PETITIONER/PETITIONER/COMPLAINANT:** **---------------------------------------------** **K.SUBAIR 41 YEARS, S/O. LATE ASSAI, RAHMANIYA MANZIL, CHAKKAKALLU, KANNUR (DIST.)** ## **BY ADV. SMT.K.DEEPA (PAYYANUR)** ## **RESPONDENT(S)/RESPONDENTS/STATE & ACCUSED:** **------------------------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.** **2. KANNOTHUMKANDY SIRAJ,** **29 YEARS, S/O. KUHAMMED, AZHEEKKODEN HOUSE, P.O. MANANTHERI, VIA.KUTHUPARAMBA, KANNUR, PIN - 670 643.** **R1 BY PUBLIC PROSECUTORSRI. SAIGI JACOB PALETTY** **R2 BY ADV. SRI.ABU MATHEW SRI.AJU MATHEW SRI.ABHILASH MATHOOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sdr/-** ALEXANDER THOMAS, J. ----------------------------- Crl.R.P.No.691 Of 2017 --------------------------------- Dated this the 11th day of July, 2017. ## O R D E R The order under challenge is the one rendered by the trial court concerned (Chief Judicial Magistrate Court, Thalassery), whereby the application filed by the complainant to condone the delay in representing the complaint has been dismissed. The petitioner is the complainant in S.T.C.No.786/2015 (old No: S.T.C.No.42/2012 on the file of the Chief Judicial Magistrate Court, Thalassery). The 2nd respondent is the accused in the said complaint for the offence under Sec.138 of the N.I.Act. The dishonoured cheque in question in this case is for Rs.5 lakhs. 2. Heard Sri.K.Deepa, learned counsel appearing for the petitioner-complainant, Sri.Abu Mathew, learned counsel appearing for R-2 (accused) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State. 3. The petitioner-complainant had originally filed the complaint (previously numbered as S.T.C.No.42/2012) in 19.5.2012. Subsequently, in view of the rendering of the judgment dated 1.8.2014 of the Apex Court in Dasarath Rupsingh Rathod v. State of Maharashtra & ::2:: Crl.R.P.No.691 Of 2017 anr., reported in (2014) 9 SCC 129, the said complaint was returned on 23.9.2014 for presentation within 30 days before the Magistrate Court having territorial jurisdiction over the area of the drawee bank in question. According to the petitioner there was some communication gap on the part of the advocate clerk and the complainant could not take back the complaint for re-presentation before the “proper court”. Later, the provisions of the Negotiable Instruments Act were amended with effect from 15.6.2015, whereby the new provisions as in Sec.142(2) and Sec.142A have been inserted. Thereafter, the petitioner could came to know about the return of the complainant only on 14.9.2015 and he had immediately taken steps to present the complaint before the original court on 15.9.2015 along with delay condonation petition, in view of the amended provisions in the N.I.Act. Without issuing notice to the accused, the learned Magistrate had condoned the delay as per the order dated 29.4.2017. The legality and the correctness of the said order dated 29.4.2017 passed by the learned Magistrate was challenged by the 2nd respondent (accused) herein by filing Crl.M.C.No.2079/2016. 4. This Court, by a detailed order dated 16.1.2017 in Crl.M.C.No.2079/2016 has held that a Division Bench of this Court in the case Binoy K.Mathew v. Godley Dev John & anr., reported in 2015 (4) ::3:: Crl.R.P.No.691 Of 2017 KHC 243 (DB), had held that the directions in the Apex Court judgment in the case Dasarath Rupsingh Rathod 's case (supra), will not preclude the statutory powers conferred on the Magistrate as per Sec.470 of the Cr.P.C, etc. However, their Lordships of the Division Bench of this Court in Binoy Mathew's case (supra), has held that in view of the amended provisions contained in Sec.142A of the N.I.Act, the said provisions would cover cases pending before any court whether filed before it or transferred to it, before the commencement of the Ordinance and such cases shall be transferred to the court having jurisdiction under subsec.(2) of Sec.142 of the N.I. Act as if that sub-section had been in force at all material times. However, the Division Bench further held in para 20 of the said decision that in view of the amended provisions contained in Secs.142A and 142(2), there is no requirement to take recourse to the above said enabling powers for condoning the delay and time exclusion and that the petitioners could be permitted to present the complaint in the respective courts where they were originally filed and that on such presentation the courts shall treat the same as having been filed on the date on which the respective complaints were originally filed, etc. This Court in the order dated 16.1.2017 in Crl.M.C.No.2079/2016 has clearly held that the benefit of the said directions issued by the Division Bench in Binoy Mathew's case (supra) ::4:: Crl.R.P.No.691 Of 2017 could be availed only with effect from 15.6.2015 and that in cases where the returned complaints have not been re-presented before the original court on or before 14.6.2015 cannot get the said benefit. But that in such cases, the learned Magistrate is obliged to consider the question of delay condonation and time exclusion under Sec.142(1)(b) of the N.I. Act and Sec.470 of the Cr.P.C, etc. In the instant case, since the complaint was re-presented before the original court only after coming into force of the amended ordinance, this Court held that the learned Magistrate did have the power to condone the delay, but that since the accused was not heard before the impugned order was passed, the said order was set aside and the matter was remitted for consideration of the question of delay condonation and time exclusion after granting a reasonable opportunity to the accused as well. It is compliance of the directions, as per order dated 16.1.2017 in Crl.M.C.No.2079/2016, that the impugned order has been passed by the learned magistrate on 29.4.2017. 5. A reading of the impugned order dated 29.4.2017, would disclose that in the original affidavit filed by the complainant for explaining the delay, it is stated that the delay is calculated as 327 days. Later, another affidavit was filed stating that the delay is 357 days. After hearing both sides, the learned Magistrate has passed the ::5:: Crl.R.P.No.691 Of 2017 impugned order holding that these divergent factual position taken by the complainant even regarding the number of days involved in the delay would disclose that the petitioner is not aware about the actual facts regarding the case, etc., and that he was not vigilant for prosecuting the case and has accordingly, dismissed the delay condonation application. 6. This Court, in the order dated 14.6.2017 in Crl.R.P.Nos.492 & 493 Of 2017, has held that in cases like in the instant one, where the complaints, which were returned pursuant to the Apex Court's directives were not filed prior to 15.6.2015, would get the benefits of the direction envisaged in para 22 of the Divison Bench of this Court in Binoy K.Mathew's case (supra) and that therefore, the time up to 14.6.2015 could be excluded in terms of Sec.470 of the Cr.M.C and further that in such cases, the trial court has to assess the issue of condonation of delay from 15.6.2015 (coming into force of the amended ordinance) upto the actual date of re-presentation of the complaint. This crucial aspect of the matter has lost sight of by the learned Magistrate while passing the impugned order. True, that there is mistake as to the number of days involved in the delay. That appears to be a factual error in the affidavit on the part of the complainant. There are no disputes regarding the date of return and re-presentation ::6:: Crl.R.P.No.691 Of 2017 of the complaint. As held in the above said decisions of this Court, time up to 14.6.2015 is to be lawfully excluded and such exclusion is fully justify in terms of the legal principles laid down by the decision of the Division Bench in Binoy K.Mathew's case (supra) and also discernable from the principle of of time exclusion flowing from Sec.470 of the Cr.P.C. In the instant case, there is no dispute that the complaint was re-presented before the Magistrate on 15.9.2015 and the delay from 15.6.2015 alone need be explained by the complainant. This Court has also held in the order dated 14.6.2017 in Crl.R.P.Nos.492 & 493 Of 2017 that in cases like the instant one, criminal courts should take a lenient view, taking into consideration considerable amount of dislocations that were faced by the parties as well as by the Advocates concerned, who are prosecuting such cases due to transfer of cass as mandated by the judgment dated 1.8.2014 of the Apex Court as well as the reverse provision contained in the amended Secs.142(2) and 142A of the N.I.Act which were made effective from 15.6.2015. A realistic and pragmatic attitude has to be borne in mind while considering such issues. Therefore, this Court is of the view that there is no point in remitting the matter any further and a reading of the petition as well as the delay condonation application would disclose that ::7:: Crl.R.P.No.691 Of 2017 there is nothing unbelievable about the factual reasons for explaining the delay. In this view of the matter, the impugned order dated 29.4.2017 passed by the learned Magistrate on Crl.M.P.No.4239/2015 in S.T.C.No.786/2015 (old S.T.C.No.42/2012) on the file of the Chief Judcial Magistrate Court, Thalassery, will stand set aside. Resultantly, it is ordered that the delay condonation application in S.T.No.786/2015 will stand allowed. The complaint in S.T.C.No.786/2015 will stand restored to the file of the Magistrate Court. The complainant and the learned counsel for the complainant shall personally appear before the trial court at 11:00 a.m. on 26.8.2017, on which day the learned Magistrate will take steps to issue summons to the accused and thereafter proceed with the complaint in accordance with law. With these observations and directions, the Crl.R.P stands finally disposed of. ALEXANDER THOMAS, Judge. bkn/-